NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 14-4354
_____________
VICTOR F. NOVAK, II, M.D., F.A.C.S.,
Appellant
v.
SOMERSET HOSPITAL; MICHAEL J. FARRELL;
M. JAVAD SAADAT, M.D.; PETER T. GO, M.D.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(No. 3-07-cv-00304)
District Judge: Hon. David. S. Cercone

Submitted under Third Circuit L.A.R. 34.1(a)

on July 14, 2015

Before: SMITH, GREENAWAY, JR., and SHWARTZ, Circuit Judges

(Opinion filed August 20, 2015)

OPINION*

GREENAWAY, JR., Circuit Judge

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Victor Novak, M.D. (Appellant or Novak) brought various antitrust

allegations against Somerset Hospital, Michael Farrell (Somerset Hospital CEO), Dr. M.
Javad Saadat, and Dr. Peter T. Go (collectively Appellees). The District Court granted
summary judgment in favor of Appellees. We will affirm.
I.

BACKGROUND
Novak is a general surgeon located in Somerset, Pennsylvania. He joined the staff

of Somerset Hospital in 1993 and since then, has practiced as an independent general
surgeon in Somerset and Cambria Counties. Somerset Hospital is located 32.5 miles
from Conemaugh Hospital and is approximately equidistant to two other hospitals
Meyersdale Hospital and Windber Hospital. In 1998, Novak joined Conemaugh
Hospitals medical staff and, during the following seven years, he held privileges at both
Somerset and Conemaugh Hospitals. During that time, Novak performed surgeries at
both facilities.
Somerset Hospital is a community hospital and is a smaller and less
comprehensive facility than Conemaugh Hospital.1 Somerset Hospitals primary service
area is comprised of the seventeen zip-codes located within its ten-mile radius. Somerset
Hospital draws 90% of its patients from this area. Based on 2005 patient data, 21.6% of
the patients in Somerset Hospitals primary service area went to Conemaugh Hospital for

Between 2006 and 2008 over 27,000 surgeries were performed at Conemaugh
Hospital. During the same period, only 7,184 surgeries were performed at Somerset
Hospital.
2

inpatient general surgery services and 22.36% went to other hospitals for general surgery
services.2
In August 2005, Novak performed two surgeries without proper authority. Based
on these transgressions, Somerset Hospital terminated Novaks privileges. He has
continued to work at Conemaugh Hospital and maintains an office in Somerset County,
close to Somerset Hospital.
Novak brought the instant action against Appellees alleging violations of Sections
1 and 2 of the Sherman Act, 15 U.S.C. 1 and 2, and seeking an injunction (and
reinstatement of privileges at Somerset Hospital) under Section 16 of the Clayton Act, 15
U.S.C. 26.3 At bottom, Novaks argument is that Farrell, Saadat, Go, and various
Somerset Hospital board members conspired to terminate his privileges, thereby
allow[ing] Somerset to reduce the likelihood that its patients would be treated at
Conemaugh. Appellants Br. at 6. This, he argues, has illegally restrained patient
choice for general surgical services in Somerset. He acknowledges that Conemaugh . . .
provides substitute services for Somerset, but argues that Somerset does not provide
substitute services for [] larger tertiary care hospitals such as Conemaugh Hospital. Id.
at 22.

In other words, in 2005, nearly 44% of the patients in Somerset Hospitals primary
service area obtained general surgery services elsewhere.
3

Novak also brought various state law claims, over which the District Court
declined to exercise supplemental jurisdiction and which it dismissed without prejudice.
That decision is not before us on appeal.
3

The District Court determined that Novak did not show that he was shut out of the
relevant market or that patient choice was restrained. Therefore, the District Court
concluded, as a matter of law, that Novak failed to establish antitrust injury and granted
summary judgment in favor of Appellees. We will affirm.
II.

ANALYSIS4
For plaintiffs suing under federal antitrust laws, one of the prudential limitations

is the requirement of antitrust standing. Ethypharm S.A. Fr. v. Abbott Labs., 707 F.3d
223, 232 (3d Cir. 2013) (quoting City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
264 (3d Cir. 1998)) (footnote omitted). Antitrust standing augments the case or
controversy requirement under Article III, but does not affect the subject matter
jurisdiction of the court. Id. Rather, it simply prevents a plaintiff from recovering
under the antitrust laws. Id.
The Supreme Court has articulated several factors that guide our analysis of
whether a plaintiff has antitrust standing:
(1) the causal connection between the antitrust violation and
the harm to the plaintiff and the intent by the defendant to
cause that harm, with neither factor alone conferring standing;
(2) whether the plaintiffs alleged injury is of the type for
which the antitrust laws were intended to provide redress; (3)
the directness of the injury, which addresses the concerns that
liberal application of standing principles might produce
The District Court had jurisdiction over Novaks federal antitrust claims pursuant
to 28 U.S.C. 1331. We have jurisdiction under 28 U.S.C. 1291. We review the
District Courts grant of summary judgment de novo and review the facts in the light
most favorable to the nonmoving party. Burns v. Pa. Dept of Corr., 642 F.3d 163, 170
(3d Cir. 2011). We will affirm if our review reveals that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
4

speculative claims; (4) the existence of more direct victims of

the alleged antitrust violations; and (5) the potential for
duplicative recovery or complex apportionment of damages.
Ethypharm, 707 F.3d at 23233 (citing Assoc. Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 545 (1983)). The second factor, antitrust injury,
is a necessary . . . condition of antitrust standing. If it is lacking, [a court] need not
address the remaining [] factors. Id. at 233 (quoting Barton & Pittinos, Inc. v.
SmithKline Beecham Corp., 118 F.3d 178, 182 (3d Cir. 1997)) (citation omitted). To
state a viable antitrust injury, a plaintiff must generally show that he is a competitor or a
consumer in the relevant product and geographic markets in which competition was
adversely impacted. See id.
A.

Relevant Product Market

The relevant product market is comprised of commodities reasonably

interchangeable by consumers for the same purposes. United States v. E.I. DuPont de
Nemours & Co., 351 U.S. 377, 394 (1956). Interchangeability implies that one product
is roughly equivalent to another . . . [and] while there might be some degree of preference
for the one over the other, either would work effectively. Allen-Myland, Inc. v. Intl
Bus. Machs. Corp., 33 F.3d 194, 206 (3d Cir. 1994).
Novak argues that, by virtue of his Somerset Hospital privileges being terminated,
he has been prevented from providing general and gastrointestinal (GI) surgery
services to the patient base he served while at Somerset Hospital. He further argues that
tertiary care hospitals such as Conemaugh are not in the same product market as

Somerset because Conemaugh Hospital offers more comprehensive services than

Somerset Hospital. Appellants Br. at 42.
As the District Court stated, the fact that Conemaugh Hospital is a larger, more
comprehensive facility, than Somerset Hospital does not provide a rational basis . . .
for concluding that the general/GI surgical services offered at Conemaugh are not
reasonable substitutes for those same types of services offered at Somerset Hospital.5
App. at 29. Accordingly, we agree with the District Courts conclusion that Novaks
product market definition . . . provides no rational basis for distinguishing between
[general]/GI surgical services [at Somerset Hospital] and [general]/GI surgical services in
the larger facilities like Conemaugh. App. at 29.
B.

Relevant Geographic Market

The relevant geographic market is the area in which a potential buyer may
rationally look for the goods or services he or she seeks. Pa. Dental Assn v. Med. Serv.
Assn of Pa., 745 F.2d 248, 260 (3d Cir. 1984). As Novaks expert recognized, in 2005
more than 32% of patients from Somerset Hospitals primary service area were admitted
to Conemaugh, Meyersdale, and Windber Hospitals. As such, Novaks attempt to define
the relevant geographic market as only Somerset Hospital is illogical and inconsistent
with the record.
This conclusion is further supported by Novaks own argument that Farrell sought
to terminate Novaks privileges at Somerset Hospital in part because Farrell disapproved
5

As an example, when Somerset Hospital placed a moratorium on certain bariatric

surgeries, Novak moved all of his bariatric surgeries to Conemaugh Hospital.
6

of Dr. Novaks treatment of patients at Conemaugh because it reduced income to

Somerset. Appellants Br. at 6. This argument necessarily (and correctly) assumes that
potential patients seeking the surgical services Novak provides would rationally look to
both Somerset and Conemaugh Hospitals. Accordingly, Novaks definition of the
relevant geographic market is legally insufficient.
When the relevant product and geographic markets are properly defined as
including general/GI surgical services at Somerset and Conemaugh Hospitals, there is no
evidence that Novak was shut out of the relevant market or that patient choice was
restrained so as to demonstrate an actionable antitrust injury. See Mathews v. Lancaster
Gen. Hosp., 87 F.3d 624, 641 (3d Cir. 1996). Because Novak failed to do so, we agree
with the District Court that he lacks antitrust standing to pursue his claims and need not
address the other antitrust standing factors.
III.

CONCLUSION
In light of the foregoing analysis, we will affirm the District Courts grant of

summary judgment in favor of Appellees.